Between the Confederation and the Constitution

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Subtitle: Take This or Nothing.

At the close of last week’s squib, James Madison and Federalist supporters of the Constitution carried the day in the Confederation Congress. Although Congress did not express explicit support, it sent the Constitution anyway to the states for submission to ratifying conventions. Most notably, Congress did not attach the amendments recommended by Virginia’s Richard Henry Lee. To Lee, amending the Constitution before ratification made simple sense. Just a few preventive amendments may mean the difference between a republic and an aristocracy likely to slide into oligarchy.

So, as the Anti-Federalist forces gathered, the nationwide question remained: Should an imperfect Constitution be amended before the ratification of nine states, or should the nation rely instead on Article V after the new government is in motion and operating? Amend when a simple majority of the states will do, or risk the more difficult process in Article V?

Few were entirely satisfied with Constitution. George Washington thought it was the best that could be done since it opened the door to amendments via Article V which lent “a way to remedy its imperfections in the future.” He supported its adoption under the “present circumstances of the Union,” which seemed to him “suspended by a thread.”

Virginia’s George Mason, who did not support the Constitution and opposed it at the Virginia Ratification Convention, nonetheless supported a stronger government and one that acted on the people, as long as the government included structural checks on the misuse of that power. In October 1787, Mason sent George Washington a list of his objections. Outside of this letter he insisted the sovereign people should hash out amendments at each state ratification convention, then hold another national convention to sort them out. After all, what right did the federal convention have to prevent adjustments before the Constitution went into effect?

Instead, Washington argued to put the government into motion, then amend it through Article V. Virginia governor Edmund Randolph understood the need for stability but argued that amendments by a simple state convention majority before implementation, rather than three-quarters per Article V, was the way to proceed. If the people were told their choices were to take it or leave it, he feared they would leave it.

The stakes were high. Washington and Randolph were not alone in fearing the worst if ratification failed. Charles Pinckney of South Carolina, also an attendee of the Philadelphia convention, warned that without ratification the sword would settle the matter of union.

But wouldn’t amendments prior to ratification open a Pandora’s Box of difficulties? Where would they stop? Lists of proposed amendments from thirteen states would be as different as the people proposing them and the interests of the states and regions from which they came. To “perfect” the Constitution would undo the touchy compromises already hashed out by different visions and interests that could never be negotiated in a second convention.

Compromise and agreement would be impossible among delegates bound by more restrictive instructions than those at the 1787 Federal Convention.

Among the potential costs of failure: European powers decide to box in thirteen independent republics. Spain picks off Kentucky and the southwest, while Great Britain does the same with Vermont and the Northwest Territory. Expect more of the debtor/creditor war of Shays, if not a catastrophic civil war and the reestablishment of monarchy in various parts. The always precarious Union under the Articles of Confederation had dissolved. Without ratification, history stood ready to write off the American experiment in free government as an oddity, a temporary reprieve from monarchy. If rational self-government couldn’t work in liberty-loving America, reason cast doubt on it working anywhere else on earth.

Washington responded to Randolph that Anti-Federalists within Virginia alone could not agree on a set of amendments. He concluded there was no prospect for agreement across thirteen states. So, it was clearer than ever to him that a second convention would produce not “a more perfect form” of government but “more heat and greater confusion” than ever. Ratification or dissolution were the two alternatives, which was put crudely yet effectively by Anti-Federalists as “take it or leave it.”

Despite the rhetorical flame from Patrick Henry at the Virginia ratification convention in June 1788, James Madison thought the Federalists could eke out a victory if they agreed to work with the Anti-Federalists to draft and propose a post-ratification, Article V Bill of Rights and some other amendments. There were, according to Madison, “too many moderate and respectable characters” that understood the need for a firm government yet were reluctant to vote in favor without additional protections.

If Virginia failed to ratify, then New York and North Carolina would likely follow suit. Since Rhode Island was a certain “no” vote, the Constitution would go into operation without a third of the states and yawning gaps between those that ratified.1 An actual and effective Union under such circumstances wasn’t likely.

So, Madison and the Federalists met objections from Anti-Federalists with cool reason. Together, the pro and con forces should calmly formulate and propose amendments for inclusion into the Constitution after ratification and the new government is up and running. This “constitutional mode” in Article V met the fence-sitters halfway and ultimately led to Virginia’s ratification and the salvation of the Union.

At the New York ratification convention in July, John Lansing and Melancton Smith led the amendments committee that proposed amendments similar to those in Virginia. However, ratification was to be conditional, and conditioned on the incorporation of certain amendments through Article V. By this, New York would remain out of the Union and not participate in the Article V process to promote the amendments it demanded. Of course, this risked never joining the Union at all.

The calculus surrounding the New York debates abruptly changed when the convention learned of New Hampshire’s ratification on June 21st, and Virginia’s on June 25. Before nine states voted to secede from the confederation and join in a new Constitution, the Anti-Federalists held out hope for amendments before the Constitution went into operation. The confederation was gone; how could the remaining three states (NY, NC, RI) possibly shift for themselves? Previously, a “no” vote meant preference for the Articles of Confederation. Now, a vote against the Constitution was a vote to remain outside the Union.

For New York to condition ratification on the adoption of certain amendments was to risk isolation and likely to cause lasting division in the Union which raised the real possibility of serious and ultimately violent conflicts between the ratifying and nonratifying states. With no presence in the new government, New York could not join congressional members from other states to amend the Constitution via Article V. Change was now far more likely from efforts within the system than without.

With the writing on the wall, leading Anti-Federalist Melancton Smith flipped sides and supported ratification. This was enough to put ratification over-the-top and allow delegates to sort out and propose amendments. The Committee of the Whole, by a 31-28 vote finished its work with a statement of rights, explanatory amendments, a bill of rights, and a form of ratification. The whole package, including a Circular Letter passed by a 30-27 vote on July 26th.

Eleven states joined in a new Union only ten months after the Philadelphia convention. The remaining two, North Carolina and Rhode Island, were certain to eventually join.

Conclusion. The Nine-State minimum to commence the new government along with the expectation of Article V amendments saved the Union. Few wished to plod on under the Articles of Confederation which experience showed to be unamendable. How could the nation add additional states if the permission of all was needed to improve the structure of government? Self-government was stuck between the proverbial rock and a hard place. Either face certain dissolution, anarchy, and foreign intrusions, or take a deep breath and dive into a new and unique American republican form.

When asked to “take it or leave it,” America not only took the Constitution, America ran with it and established an unsurpassed legacy of liberty and free government!

1. On June 21st, New Hampshire was the ninth state to ratify. Virginia followed on June 25th. After an agonizing convention that started on June 17th, New York ratified the Constitution on July 26th.

Reference: Maier, P. (2010). Ratification – The People Debate the Constitution. New York: Simon and Schuster, Inc.